Governor Paul LePage of Maine speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.
Photo Credit: Gage Skidmore
According to Governor LePage, implementation of the new Maine medical marijuana rules will likely be delayed until May 1.
In a last-minute move, Governor LePage agreed today to delay the effective date of the Maine DHHS/CDC’s new medical marijuana rules slated to take effect February 1. Among other changes, the rules would introduce mandatory inspections for caregivers without notice, even in their homes, and inspections for patients with 24 hours’ notice. While patients and caregivers would still have the Fourth Amendment right to refuse an inspection without a warrant, the new rules would provide for potential penalties for caregivers who refuse an inspection, including revocation of licenses and referral to law enforcement. The rules would also introduce new caregiver recordkeeping requirements.
The new rules have met with significant pushback from patients and caregivers, including a lawsuit filed in US District Court by caregivers, alleging the new rules would violate patients’ HIPAA protections, and that they exceed the legislative authority granted to DHHS, among other claims.
Fortunately for Maine patients and caregivers, based on a January 31 letter from Governor LePage to Rep. Deb Sanderson, who requested a delay of the new rules, it appears that the rule changes will not be enforced until May 1. LePage will likely issue an executive order this week delaying the rules’ enforcement, as a moratorium bill that would delay the rules’ implementation would not have been approved before the rules took effect on February 1.
In his letter, LePage cites the need to avoid “complication and confusion,” and reiterated his previous call for the new medical rules to more closely parallel the upcoming adult-use cannabis law[¹]. As with his letter issued in October 2017, in connection with his veto of a bill to overhaul Maine’s recreational marijuana laws, he stressed the importance of unified oversight of both cannabis programs by one agency, and identical tax rates for both programs.
Assuming the Governor is true to his word and issues an order to delay the rules, caregivers will not need to prepare themselves for the new rules to take effect on February 1 – or for mandatory unannounced inspections by the Maine DHHS/CDC. The program will continue to operate under the current rules, last updated in September 2013, and under the Medical Use of Marijuana Act.
There is no penalty for refusing an inspection under the current DHHS rules.
If the new rules are delayed as expected – and even in the unlikely event that they are not – Maine patients and caregivers should remember their constitutional rights. Just like anyone else, patients and caregivers have the Fourth Amendment right to refuse entry by any government agent into their private property without a warrant.
In the event a DHHS inspector calls or shows up at the door, a patient or caregiver can (and should) politely ask that the inspector to reschedule the inspection for a time when an attorney can be present. The current rules provide no penalty for refusing or postponing an inspection, and inspectors frequently reschedule inspections when asked. An inspection will be far less stressful, and less risky, with an attorney present.
Lastly, a patient or caregiver should neversubmit to a warrantless search by, or answer the questions of law enforcement agents, during a DHHS inspection or otherwise. If a DHHS inspector arrives for an inspection accompanied by law enforcement agents, and the patient or caregiver is ready for an inspection, the patient or caregiver should politely demand that those agents remain outside. There is no legal requirement for law enforcement to participate in an administrative inspection, and there is simply too much potential for legal issues to arise.
Footnote : The moratorium on the retail aspects of Maine's adult-use cannabis law is set to expire on February 1. However, with no agency rules in place to implement the program or provide for a licensing process, no adult-use marijuana licenses can be issued. The legislature is considering a new measure to further delay implementation of the retail aspects of Maine's adult-use cannabis law.
As always, this blog post is not case-specific, and not a substitute for legal advice from your attorney. If you have any questions about the current or new DHHS medical marijuana rules, or other legal questions, contact your attorney.